Published: July 15 2014

Update 28 July 2014

The Government is appealing this judgment. If you would like to help PLP bear the costs and risks of the Government’s appeal, please consider making a contribution to our fighting fund, which is at www.publiclawproject.org.uk/plp-fighting-fund

Original Press Release

In a powerful judgment delivered today the Divisional Court has confirmed that Government proposals to introduce a “residence test” for civil legal aid are unlawful. The thrust of those proposals was to prevent those who could not prove 12 months lawful residence in the UK from accessing the legal aid scheme.

The Secretary of State for Justice/Lord Chancellor sought to introduce such a test by regulations which (if approved by Parliament) were expected to come into force in August 2014. The regulations would have excluded many people with meritorious cases under UK law from obtaining legal assistance, regardless of the fact that their claims were otherwise recognised to be of the highest priority. PLP applied for judicial review of the Lord Chancellor’s proposals, asserting that he was seeking to act unlawfully.

The Court agreed with PLP that the Lord Chancellor does not have the legal power to introduce such a test. The Court restated long-established principles that regulations made under an Act of Parliament must be consistent with the policy and object of that Act. Ministers can only act within the limit of powers granted to them by Parliament. The Court considered that Parliament’s intention in passing the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) was to prioritise legal aid in cases of greatest need, and that the proposed residence test was inconsistent with that intention.

In addition, the Court also agreed with PLP that the residence test would amount to unlawful discrimination. The Court recognised that in many policy arenas (such as welfare benefits, for example) the state can legitimately restrict assistance to residents of the UK. However, the Court held that equality before the law is not a welfare benefit, but a fundamental cornerstone of our system of government.

The Court noted that the kinds of cases that would be affected by the proposal were by definition meritorious cases, for people who could not afford to pay, in precisely those areas which had been identified by Parliament as being of the highest priority. The Court restated the proud principle that all those who are subject to English law are equal before it, whether they are British nationals or not.

Accordingly, the Court held there was no lawful basis for the implementation of a test that would have the effect of advantaging one claimant over another merely on grounds of their country of lawful residence. As Lord Justice Moses confirmed in the lead judgment:

‘…it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not.’ [83]

Jo Hickman, Head of Casework at PLP, said:

“We are heartened by this judgment, which embodies and articulates the finest traditions of our justice system and provides a timely illustration of the importance of judicial review as a check on unlawful executive action.”

The Public Law Project (PLP) is an independent, national legal charity which aims to improve access to justice for those whose access is restricted by poverty, discrimination or other similar barriers. The residence test case was brought in furtherance of PLP’s charitable objectives. PLP’s website is at http://www.publiclawproject.org.uk/

PLP’s legal team was John Halford of Bindmans LLP, Michael Fordham QC, Ben Jaffey, Naina Patel of Blackstone Chambers, and Alison Pickup of Doughty Street Chambers. Bindmans press release on the case can be found on their website: http://www.bindmans.com/news-and-events/news

The Divisional Court of the Administrative Court is a court comprised of more than one judge. In judicial review cases, it generally signifies a claim of particular importance. The Court in this case was Lord Justice Moses, Mr Justice Collins, and Mr Justice Jay.

The Divisional Court considered the types of case that would be caught by the residence test, citing examples of an autistic child of a refugee whose educational needs were not being met [paragraph 27], and of an adult with learning disabilities who had been starved and beaten by their family [paragraph 30].

The Government’s intention had been to introduce the residence test through the Legal Aid Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014. The House of Commons voted to approve the draft order last week. The Lords vote is scheduled for 21July 2014. It is not currently known whether the draft regulations will be withdrawn before then.